South Dakota: Mechanic's Lien Waiver Form and Advance-Waiver Rules
The short answer
South Dakota does not void advance lien waivers; a mechanic's lien can be expressly waived, and the statute says this can be done 'in addition to all other means presently existing under law.' The one waiver mechanism the code spells out is a joint-check waiver: a supplier waives by endorsing a joint check payable to it and the contractor and by signing a separate written waiver agreement, with a conspicuous provision on the back of the check referencing that agreement. That waiver reaches all lien, bond, and common-law claims — but only to the amount of, and as of the date of, the joint check.
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This is the general rule in South Dakota. Ezel applies current South Dakota law to your specific facts and answers with citations to the statutes.
| Governing law and project scope | South Dakota Codified Laws ch. 44-9 (Mechanics' and Materialmen's Liens) plus the waiver chapter, ch. 44-9A. The waiver chapter covers liens for materials, supplies, equipment, and services furnished to a contractor or subcontractor arising under Title 5 (bonds), Title 44, or the common law (§ 44-9A-1). No separate residential track; no fill-in statutory form. |
|---|---|
| Advance or prospective waiver | Permitted; no statute voids an advance or no-lien waiver. Liens 'may be expressly waived as provided in this chapter in addition to all other means presently existing under law by which such liens may be waived' (§ 44-9A-1). The chapter adds an optional mechanism rather than restricting waiver; it contains no downstream-subcontractor shield. |
| Statutory form requirement | Optional safe harbor, not exclusive. Chapter 44-9A supplies one waiver method — a joint check plus a separate written waiver agreement (§§ 44-9A-2 to 44-9A-4) — but § 44-9A-1 preserves 'all other means presently existing under law,' so a waiver by other lawful means is also valid. There is no prescribed conditional/unconditional or progress/final fill-in form. |
| Waiver types and payment stage | No conditional/unconditional or progress/final labels. The statutory joint-check waiver is inherently partial and payment-measured: it operates 'to the extent of, and as of the date of, the joint check' (§ 44-9A-4), functioning like a progress waiver tied to each payment. |
| Payment and effectiveness | The joint-check waiver takes effect on the supplier's endorsement of the joint check 'in consideration of the payment represented by the joint check' together with execution of the separate written agreement (§§ 44-9A-2, 44-9A-3, 44-9A-4). It reaches only the amount of, and date of, that check, so unpaid or later amounts stay lienable. |
| Required contents, exceptions, and through date | The joint check must bear a conspicuous provision on its reverse referencing the separate written waiver agreement and stating the payees 'jointly and severally waive all claims … for all materials, supplies, equipment, and services supplied under a clearly identified contract to the extent of and of the date of the joint check' (§ 44-9A-3). The check's date is the through date and the contract must be clearly identified; no statutory retainage or extras exception list. |
| Rights released and reserved | The joint-check waiver is 'an express waiver of all rights and claims under Title 5 and Title 44 … and the common law of this state against the owner or contractor and his surety to the extent of, and as of the date of, the joint check' (§ 44-9A-4) — reaching the mechanic's lien, Title 5 bond claims, and common-law claims. Anything above the check's amount or after its date is reserved. |
| Signature, authority, notary, and format | Requires the supplier's endorsement of the joint check and execution of a separate written waiver agreement (§§ 44-9A-2, 44-9A-4), plus the conspicuous reverse-side provision on the check (§ 44-9A-3). No notarization, acknowledgment, or warning-type-size rule is prescribed. |
| Noncompliance, remedies, and transition traps | Chapter 44-9A is permissive: it neither voids other waivers nor penalizes a nonconforming one, and § 44-9A-1 keeps 'all other means' of waiver available. The joint-check waiver reaches only the check's amount and date, so it never surrenders unpaid or later work. Enacted SL 1971, ch. 250, and unchanged; no pending amendment found. |
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Requirements one by one
Waiver is allowed, by this method or any other lawful one
South Dakota's waiver chapter, SDCL chapter 44-9A, starts from a permissive
premise. Section 44-9A-1 says construction liens under Title 5, Title 44, or the
common law "may be expressly waived as provided in this chapter in addition to
all other means presently existing under law by which such liens may be waived."
Two things follow. First, waiver is freely allowed — there is no statute voiding
an advance or "no-lien" waiver. Second, the joint-check method the chapter
describes is one option, not the only one; a waiver made by other lawful means is
equally valid.
The statutory joint-check waiver has three moving parts
When parties use the chapter's method, three things must line up:
- A joint check whose payees include both the contractor or subcontractor
and the supplier furnishing the materials, supplies, equipment, or services
(§ 44-9A-2). - A separate written agreement of waiver between the maker of the check and
the supplier (§§ 44-9A-2, 44-9A-4). - A conspicuous provision on the back of the check referencing that separate
agreement and stating that the payees, by endorsing and in consideration of
the payment, "jointly and severally waive all claims" under Title 5 and Title
44 and the common law for materials and services "supplied under a clearly
identified contract to the extent of and of the date of the joint check"
(§ 44-9A-3).
When the supplier endorses the joint check and signs the separate agreement, that
"shall constitute an express waiver of all rights and claims under Title 5 and
Title 44 … and the common law … against the owner or contractor and his surety to
the extent of, and as of the date of, the joint check endorsed" (§ 44-9A-4).
The waiver is measured by the check
This method never waives more than the check pays. It operates "to the extent of,
and as of the date of, the joint check," so amounts not covered by the check, and
work furnished after its date, remain lienable. The waiver also reaches more than
the mechanic's lien: it releases Title 5 bond claims and common-law claims against
the owner, the contractor, and the contractor's surety, again only to the check's
extent and date.
What trips people up
A joint check alone is not a waiver, and a signed agreement alone is not a waiver.
The chapter's method requires both, plus the conspicuous back-of-check language
tying them together. Miss any one piece and the joint-check safe harbor does not
apply — though a waiver may still be effective by "other means presently existing
under law" under § 44-9A-1.
Watch the words "clearly identified contract." Section 44-9A-3 requires the
waiver to point at a specific contract. A joint check that does not identify which
contract it pays leaves the scope of the waiver uncertain.
Because the waiver is capped at the check's amount and date, retainage and later
work are not swept in automatically. A supplier who has not been paid for
everything keeps its lien for the unpaid balance, and endorsing one joint check
does not surrender claims for a later payment.
Common questions
Does South Dakota have a fill-in statutory lien-waiver form?
No. Chapter 44-9A describes a joint-check waiver method with functional
requirements, and § 44-9A-1 preserves all other lawful means of waiver, but it
prescribes no fill-in conditional/unconditional or progress/final form.
Can lien rights be waived before the work or payment?
Nothing voids an advance waiver. Section 44-9A-1 allows express waiver generally,
and the joint-check method is simply one way to do it.
How much does a joint-check waiver give up?
Only the amount of, and claims as of the date of, the joint check (§ 44-9A-4).
Unpaid amounts and later work remain lienable.
Statutes and sources
- SDCL § 44-9A-1 (liens subject to waiver; waiver allowed "in addition to all
other means") — https://sdlegislature.gov/api/Statutes/44-9A-1.html
(accessed 2026-07-23) - SDCL § 44-9A-2 (joint check and separate agreement of waiver required) —
https://sdlegislature.gov/api/Statutes/44-9A-2.html (accessed 2026-07-23) - SDCL § 44-9A-3 (conspicuous provision on reverse of joint check) —
https://sdlegislature.gov/api/Statutes/44-9A-3.html (accessed 2026-07-23) - SDCL § 44-9A-4 (endorsement and separate agreement as express waiver, to the
extent and date of the check) — https://sdlegislature.gov/api/Statutes/44-9A-4.html
(accessed 2026-07-23)
Source links
Every statute quoted above, linked, with the date we checked it.
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